# Petition for Writ of Certiorari — United Parcel Service, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3033%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 834 ## Text ince * Supreme Court, U.S. 83-2115 yi FILED JUN 35 1004 No. ALEXANDER STEVAS. CLERK IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 UNITED PARCEL SERVICE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BERNARD G. SEGAL* JAMES D. CRAWFORD FRANK C. SABATINO Attorneys for Petitioner SCHNADER, HARRISON, SEGAL & LEWIS Suite 3600 1600 Market Street Philadelphia, Pennsylvania 19103 Of Counsel. *Counsel of Record Oe QUESTIONS PRESENTED 1. When courts of appeals are in conflict over the duty of the National Labor Relations Board to defer to grievance determinations under collective bargaining agreements and the Board itself continues to take con- flicting positions on the question, should not the Court resolve this important issue of national labor policy? 2. When the court of appeals adopted a policy against deferral except in extremely limited circumstances, did not its ruling clash with the federal labor policy which requires that grievance procedures established by collec- tive bargaining agreements be expenditious, immune from deliberate bypass, and insulated from collateral attack? 3. Even if this Court does not resolve the underly- ing deferral issues, should not this specific case be remanded to the Board for reconsideration in light of its intervening decision in the Olin case? (1) TABLE OF CONTENTS QUESTIONS PRESENTED ...4........ cece cece eeeees CHPINBOING BELOW qn. nonce certain eee as cares seins JURISDICTION STATUTORY PROVISIONS INVOLVED ...........-. STATEMENT OF THE CASE ..........-.. cess eeeees REASONS FOR GRANTING THE WRIT ..........-- 1. AN AUTHORITATIVE DECISION OF THIS COURT IS INCREASINGLY NECESSARY TO RESOLVE A SERIOUS CONFLICT OF Pld: ¢ 3) i eer es errr rt A. The Vacillation in NLRB Decisions ........... B. The Split Among the Circuits ...............-- Il. BOTH THE RULING OF THE COURT OF APPEALS IN THIS CASE AND THE NLRB'S SUBSEQUENT FORMULATION OF DEFERRAL STANDARDS IN OLIN CLASH WITH FEDERAL LABOR POLICY ............ Ill. AT THE VERY LEAST, THIS CASE SHOULD BE REMANDED TO THE NLRB FOR RECONSIDERATION IN LIGHT OF OLIN .... CONCLUSION (11) 13 18 19 TABLE OF CITATIONS Page No. Court DECISIONS: Bakery, Confectionery & Tobacco Workers International Union 25, No. 83-1416 (March 27, 1984) .............. 12 Bloom v. NLRB, 603 F.2d 1015 (D.C. Cir. 1979) ......... i) Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 ee PRG k Waa hace hk Ab 6s a sis0 54s 16, 17 Liquor Salesmen’s Union Local 2 v. NLRB, 664 F.2d 318 (2d Cir. 1981), cert. denied, 456 U.S. 973 (1982) ....... 9, 10, 13 NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ....... 10, 16 NLRB v. Magnetics International, Inc., 699 F.2d 806 (6th gh RESTS «AC 12 NLRB v. Pincus Brothers, Inc.-Maxwell, 620 F.2d 367 (3d Ci ta gite ka chien akahbi seis kancdac 9, 13 NLRB v. The Motor Convoy, Inc., 673 F.2d 734 (4th Cir. eC Bees hes cia db kes o5.4 a Na cu seensanss passim NLRB v. Transportation Management Corp., 103 S.Ct. 2469 I ae ree Gy AAMC Sc Os KR AN seca wee yc ens 7 NLRB vy. Yeshiva University, 444 U.S. 672 (1980) ......... 13, 16 Republic Steel Corp. v. Maddox, 379 U.S. 650 (1964) ..... 14,15,17 Richmond Tank Car Co. v. NLRB, 721 F.2d 499, (Sth Cir. MCCUE SU TAC Sb hay Aca tn sak eacdasiewss 9, 13 Stephenson v. NLRB, 550 F.2d 535 (9th Cir. 1977) ........ 13 United Steelworkers v. American Manufacturing Co., 363 ee PLT hb aew hss ans vows dyes 14 United Steelworkers v. Enterprise Wheel & Car Corp., 363 ee aa Cia iu phew saad ce nae ances 14 United Steelworkers v. Warrior & Gulf Navigation Co., 363 EE ee 14 TABLE OF CITATIONS (Continued) Page No. William E. Arnold Co. v. Carpenters District Counsel, 417 Sir CEE cc ocn sah 4a be SR EKER COOTACEN ETC RAEEELS 8 Woodkraft Division v. NLRB, 52 U.S.L.W. 3700 (March 19, ree rere ee eye eh eae 18 W. R. Grace & Co. v. Local 759, International Union of Rubber Workers, 103 S.Ct. 2177 (1983) ............... 14 NLRB DECISIONS: Clear Pine Mouldings, Inc., 268 N.L.R.B. No. 173 (Febru- eR er ee Te es ee ye ee 18 Electronic Reproduction Service Corp., 213 N.L.R.B. 758 (1974) 10, 11, 12, 15 International Harvester Co., 138 N.L.R.B. 923 (1962), aff'd, 327 F.2d 784 (7th Cir. 1964), cert. denied, 377 U.S. 1003 (ESA Gs are res oes 2 eee rye ee ) Olin Corp., 268 N.L.R.B. No. 86 (1984) ................ passim Professional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34 (1982) 10, 11, 12 Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (Ist Cir. 1964) ......... 8 Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955) .. passim Suburban Motor Freight, 247 N.L.R.B. 146 (1980) ....... 10,11,12 United Parcel Service, 270 N.L.R.B. No. 50 (1984) ....... Y Yourga Trucking, Inc., 197 N.L.R.B. 928 (1972) ......... 10, 11 (iv) TABLE OF CITATIONS (Continued) STATUTES: Judicial Code: PGs ao oak Sic Fi Wn sha oe te oe ek 2 Labor-Management Relations Act: SP EN sc ones ere e tx cd olan vxde ein cae 14.16.17 National Labor Relations Act: 29 U.S.C. §158(a)(1)(3) and (4) .. 2.20.0... eee. 2,6 ee es CI Gace Vc Coes Kaki wens baknkeevuees 2, 15 (v) No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 UNITED PARCEL SERVICE, INC.., Petitioner Ve NATIONAL LABOR RELATIONS BOARD, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT United Parcel Service, Inc. petitions for a Writ of Certiorari to review the judgment of the United States Court of Appeals for the Third Circuit, entered on March 15, 1984." 1. United Parcel Service is a wholly-owned subsidiary of United Parcel Service of America, Inc. Other than wholly-owned subsidi- aries, United Parcel Service of America, Inc. has no affiliates or subsidiaries except for Service Plants Corporation, the stock of which is held in trust for the benefit of the shareowners of United Parcel Service of America, Inc. Additionally, in accordance with Canadian law, qualifying shares of stock in petitioner’s Canadian subsidiaries are held by individuals who are Canadian citizens. (1) i) Petition for Writ of Certiorari OPINIONS BELOW The Order of the National Labor Relations Board and Opinion of the Administrative Law Judge (A35-A79)° has been officially reported at 261 N.L.R.B. No. 134. The Opinion of the court of appeals, enforcing in part and remanding in part the Order of the National Labor Relations Board (A4-A30) is officially reported at 706 F.2d 972 (3d Cir. 1983). The judgment of the Court of Appeals on remand from this Court and the Order of the Court of Appeals denying rehearing (Al-A3) are unre- ported. JURISDICTION The judgment of the United States Court of Appeals for the Third Circuit (A2-A3) was entered on January 19, 1984. The order denying rehearing was entered on March 15, 1984. On June 14, 1984, Justice Brennan extended the time for filing this petition for certiorari until June 23, 1984. United Parcel Service, Inc. is filing this petition within that time. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §2350. STATUTORY PROVISIONS INVOLVED Section 8(a)(1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. §158(a)(1), (3) and (4), pro- vides: It shall be an unfair labor practice for an em- ployer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; * * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employ- 2. References herein to “A” pages are to pages in the appendix to this petition. Petition for Writ of Certiorari 3 ment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not estab- lished, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159(e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agree- ment: Provided further, That no employer shall justify any discrimination against an employee for non- embership in a labor organization (A) if he has reasonable grounds for believing that such member- ship was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uni- formly required as a condition of acquiring or retaining membership; (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter; * * * * 4 Petition for Writ of Certiorari Section 203(d) of the Labor-Management Relations Act, 29 U.S.C. §173(d), provides: Final adjustment by a method agreed upon by the parties is declared to be the desirable 1iethod for settlement of grievance disputes arising over the application or interpretation of an existing collective- bargaining agreement. The Service is directed to make its conciliation and mediation services available in the settlement of such grievance disputes only as a last resort and in exceptional cases. Section 10(a) of the National Labor Relations Act, 29 U.S.C. §160(a) states in relevant part: The Board is empowered, as here and after pro- vided, to prevent any person from engaging in any unfair labor practice (listed in Section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or pre- vention that has been or may be established by agreement, law, or otherwise. . . STATEMENT OF THE CASE On July 15, 1983, United Parcel Service (“UPS”) asked this Court to review the decision of the United States Court of Appeals for the Third Circuit holding that the National Labor Relations Board (“NLRB” or “Board”) had properly refused to defer to contractual grievance determinations that two UPS employees had been disciplined for just cause. At that time, UPS warned that a conflict in circuits and uncertainty on the part of the Board threatened the stability and effectiveness of contractual grievance procedures as a means of settling labor disputes. Since that time, UPS’ warning has become a state- ment of fact. While this case was on remand to the Court of Appeals in response to the Board’s cross-petition for Petition for Writ of Certiorari 5 certiorari, the Board itself repudiated as inimical to fed- eral labor policy the rule upon which it decided this case. In Olin Corp., 268 N.L.R.B. No. 86 (1984), the Board instead adopted an entirely novel rule, repudiating at least two previous Board positions and leading to at least a three-way split in the circuits. At this point, the only hope for a coherent labor policy lies with this Court. For that reason, UPS has taken the extraordinary step of filing this second petition for certiorari. The instant case began in September 1979, when Robert W. Bowlds and David E. Perkins filed unfair labor practice charges with the NLRB against UPS. Bowlds and Perkins were former UPS employees who had been discharged ia August 1979 for falsifying their timecards to conceal the fact that they had over-extended their break periods. Approximately one week before they filed charges with the NLRB, Bowlds and Perkins had initiated griev- ances under the collective bargaining agreement between UPS and their union, Local 89 of the International Brotherhood of Teamsters. Articles 21 and 36 of that agreement prohibit discrimination against employees on the basis of concerted activities protected by the National Labor Relations Act (the “Act’’). Bowlds’ grievance explicitly alleged that he liad been discharged in retalia- tion for “union activities” and participation in litigation against UPS. The grievances were processed under Article 5 of the collective bargaining agreement, which establishes an ex- clusive remedy for “any grievance, complaint, or dispute on the part of any employee.” On September 11, 1979, a joint local-level grievance committee consisting of union and management representatives convened in Owens- boro, Kentucky. Both grievants appeared persorally, had the assistance of a union representative to present their cases, and were given the opportunity to present evidence 6 Petition for Writ of Certiorari and argument on their own behalf. Bowlds’ grievance was read into the record. After hearing conflicting evidence concerning the reason for the discharges, the local com- mittee deadlocked on their validity. Pursuant to the collective bargaining agreement, the matter was referred to the state joint committee. The state joint committee met in Louisville on the following October 9, and adhered to the same basic pro- cedure as the local committee. Bowlds’ grievance was again read into the record. The grievants appeared with a union representation and presented evidence. The state committee voted to reinstate Perkins without back pay, and he returned to work the next day. The state commit- tee deadlocked on Bowlds’ discharge and submitted the issue to a Joint Area Conference Committee (“JAC”). On October 30, 1979, the JAC convened in Chicago. Bowlds appeared, again received the assistance of a union representative, testified personally, and had his grievance read into the record. The JAC also deadlocked. Finally, the matter was referred to a special Deadlock Commit- tee, which met in Chicago on the ensuing November 20. Once more, Bowlds’ grievance was read aloud, and the grievant was given a full opportunity to offer evidence. The Deadlock Committee sustained the discharge. In the proceedings before the NLRB, the General Counsel alleged that Bowlds and Perkins had been dis- charged in retaliation for protected concerted activities. The Administrative Law Judge (the “ALJ”) rejected UPS’ contention that he should defer to arbitration. Rather, the ALJ permitted the General Counsel to relitigate many facts previously determined by the grievance committees, including whether Bowlds and Perkins had falsified their timecards. The ALJ justified his refusal to defer to the grievance determinations on the ground that the joint committees were never confronted with “the relevant facts pertaining to union and concerted activities of Bowlds Petition for Writ of Certiorari 7 and Perkins... .” On November 30, 1980, the ALJ issued an opinion which found that UPS had violated §§8(a)(1), (3), and (4) of the Act by terminating Bowlds and Per- kins. On May 21, 1982, the NLRB adopted the ALJ's opinion with minor amendments and endorsed his rea- soning on the deferral issue. The court of appeals also rejected UPS’ argument that the NLRB should have deferred to the grievance committees which upheld the disciplining of Bowlds and Perkins. Agreeing with the ALJ, the Court of Appeals held that the record did not contain evidence that the “statutory issue” of discrimination had been “fully pre- sented to or considered by the grievance panels.” On the merits, however, the Court of Appeals refused to enforce the Board’s Order concerning the discharges of Bowlds and Perkins on the ground that the NLRB had misap- plied the burden of proof. UPS and the NLRB filed cross-petitions for certio- rari. UPS’ petition was denied. On November 14, the NLR&B’s petition was granted and the case was remanded to the Court of Appeals for reconsideration in light of NLRB v. Transportation Management Corp., 103 S.Ct. 2469 (1983). The Court of Appeals enforced the Board’s Order on January 19, 1984. On the very day that the Court of Appeals enforced the Board’s Order, the NLRB issued its opinion in Olin Corp., supra, 268 N.L.R.B. No. 86, which reversed existing precedents on the defer- ral issue, including those on which the Court of Appeals had relied in the instant case. UPS filed a timely petition with the Court of Appeals for reconsideration in light of Olin. The petition was denied without explanation on March 15, 1984. On June 14, 1984, Justice William J. Brennan extended the time for filing this petition for cer- tiorari to June 23, 1984. 8 Petition for Writ of Certiorari REASONS FOR GRANTING THE WRIT The Court should grant this writ for two reasons. First, there is a serious conflict of authority among the various courts of appeals on the issue of when the NLRB should defer to arbitration, and the Board’s own deci- sions amount to a history of utter inconsistency. Only a decisive opinion by this Court can settle this longstanding and much-litigated issue. Second, both the decision of the Court of Appeals and the standard adopted by NLRB in Olin clash with the congressional policy, codified in 29 U.S.C. $173(d), that encourages resolution of labor disputes through arbi- tration and similar procedures established by collective bargaining. To safeguard the integrity of these proce- dures, this Court has long held that grievants must be prevented from bypassing such remedies in order to win a de novo hearing in another forum. Both the opinion of the Court of Appeals and the NLRB’s latest pronounce- ment in Olin permit an employee to circumvent the remedies established by a collective bargaining agreement in order to obtain a de novo trial of grievances in the NLRB. That result flouts the federal labor policy in favor of private dispute resolution mechanisms. At the very least, if the Court decides not to grant a full hearing in this case, then the matter should be remanded to the Board for reconsideration in light of Olin. 1. AN AUTHORITATIVE DECISION OF THIS COURT IS INCREASINGLY NECESSARY TO RESOLVE A SERIOUS CONFLICT OF AUTHORITY. In Spielberg Manufacturing Co., 112 N.L.R.B. 1080, iJ82 (1955), the NLRB announces that it would defer to decisions of private grievance procedures provided that: (1) the proceedings were “fair and regular,” (2) all parties Petition for Writ of Certiorari 9 had agreed to be bound, and (3) the results were not “clearly repugnant to the Act.” Eight years later, the NLRB created the additional requirement that: (4) the arbitration has decided the statutory issue currently under review. Raytheon Co., 140 N.L.R.B. 883, 884-85 (1963), enforcement denied on other grounds, 326 F.2d 471 (Ist Cir. 1964). This Court has mentioned Spielberg deferral with approval. William E. Arnold Co. v. Carpenters Dis- trict Counsel, 417 U.S. 12, 16-17 (1974). Furthermore, both the NLRB and the courts have applied the principle to the very grievance procedure contained in the collec- tive bargaining agreement between UPS and the Teamsters. Bloom v. NLRB, 603 F.2d 1015 (D.C. Cir. 1979); United Parcel Service, 270 N.L.R.B. No. 50 (1984). The Spielberg doctrine has two purposes. First, it vindicates the intention of labor and management to resolve disputes under the procedure designated in the collective bargaining agreement. Second, it avoids the time and expense of duplicative proceedings. NLRB v. Pincus Brothers, Inc.-Maxwel!, 620 F.2d 367, 374 (3d Cir. 1980); International Harvester Co., 138 N.L.R.B. 923, 926-29, aff'd, 327 F.2d 784 (7th Cir. 1964), cert. denied, 377 U.S. 1003 (1964); Spielberg Manufacturing Co., supra, 112 N.L.R.B. at 1082. Although the NLRB originally adopted the Spiel- berg doctrine as an act of discretion, once it had done so courts have uniformly held that the NLRB must defer to grievance procedures when the relevant criteria are sat- isfied. See, e.g., Richmond Tank Car Co. v. NLRB, 721 F.2d 499, 501-03 (Sth Cir. 1983); NLRB v. The Motor Convoy, 673 F.2d 734, 736 (4th Cir. 1982); Liguor Sales- men’s Union Local 2 v. NLRB, 664 F.2d 318, 326 (2d Cir. 1981), cert. denied, 456 U.S. 973 (1982); NLRB v. Pincus Brothers, Inc.- Maxwell, supra, 620 F.2d at 374. Nevertheless, a review of the cases which have applied Spielberg reveals a split of authority among the courts of 10 Petition for Writ of Certiorari appeals as to when deferral is appropriate and complete confusion in the Board’s opinions. The time is ripe for this Court to act. A. The Vacillation in NLRB Decisions Although this Court’s concern in exercising its cer- tiorari jurisdiction is far more often intercircuit conflicts rather than agency inconsistency, the intercircuit conflicts here can only be understood within the framework of the NLRB’s repeated changes of its own policy. This Court has held that the Board may not apply its discretion inconsistently. NLRB v. Bell Aerospace Co., 416 U.S. 267, 289 (1974). Yet as former Chairman Van de Water wrote in his dissenting opinion in Professional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34, slip op. at 20 (1982), the NLRB “has waxed and waned in application of broad deferral standards almost as reg- ularly as the appointment of new Board members.” This inconsistency has been especially prevalent in cases concerning the primary issue in this case, i.e., whether an underlying unfair labor practice charge was “clearly decided” during the ruling on the grievance. Indeed, the United States Court of Appeals for the Second Circuit has described the fourth prong of the Spielberg test as an “on-again, off-again” requirement. Liquor Salesmen’s Union Local No. 2 v. NLRB, supra, 664 F.2d at 324. The NLRB originally refused to defer unless the underlying statutory issues were actually litigated during the arbitration process. Yourga Trucking, Inc., 197 N.L.R.B. 928 (1972). In Electronic Reproduction Service Corp., 213 N.L.R.B. 758 (1974), however, the Board reversed course and announced that henceforth it would generally defer to the results of grievance procedures if the employee had had an opportunity to litigate the unfair labor practice issue during the processing of the griev- ance, regardless of whether he had actually done so. 213 Petition for Writ of Certiorari 1] N.L.R.B. at 762. The NLRB explained that this new rule was necessary to promote voluntary arbitration mecha- nisms and to discourage piecemeal litigation. 213 N.L.R.B. at 761-64. Electronic Reproduction remained the law until dis- piaced by Suburban Motor Freight, 247 N.L.R.B. 146 (1980), in which the Board declared once again that it would not “honor the results of an arbitration proceeding under Spielberg unless the unfair labor practice issue was both presented to and considered by the arbitrator.” 247 N.L.R.B. at 146-47. In the instant case, both the NLRB and the Court of Appeals relied on Suburban Motor Freight in ruling against UPS. . Finally, the recent decision in Olin has overruled Suburban Motor Freight and instituted an entirely new set of criteria for deferral. The Board now states that: . . . We would find that an arbitrator has adequately considered the unfair labor practice if (1) the con- tractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. 268 N.L.R.B. No. 86 at 5. The Board in Olin reasoned that this new standard, designed to encourage deferral, was more consistent with the goals of national labor pol- icy. The Olin opinion also contained the admission that “the Board’s past Spielberg policy was not so much policy as it was whim.” 268 N.L.R.B. at 9. Significantly, the Board’s new position does not sig- nal a return to Electronic Reproduction. The Olin opinion emphasized that “we do not resurrect that part of Elec- tronic Reproduction which required no more than an ‘opportunity’ to present the unfair labor practice issue to the arbitrator to warrant deferral.” 268 N.L.R.B. No. 86 at 7-8 n.10. Thus, Olin permits a grievant to obtain a de novo hearing from the NLRB by foregoing collective bar- 12 Petition for Writ of Certiorari gaining remedies entirely or by withholding from the arbitration “parallel issues” or “relevant” facts that bear on alleged discrimination under the Act. In short, the NLRB has proven unable to steer any type of consistent course on the deferral issue. Unless this Court intervenes and issues an authoritative opinion, the Board’s fidelity to deferral will continue to “wax and wane” as its membership changes. Olin, the NLRB’s third standard for deferral in one decade, could well be scrapped by a simple change in administrations. The instant case offers an excellent vehicie to resolve the issue perma- nently. B. The Split Among the Circuits Not surprisingly, the Board’s whimsical approach to deferral has engendered a serious split among the courts of appeals. The United States Court of Appeals for the District of Columbia Circuit recently upheld Olin as a legitimate exercise of the NLRB’s discretion. Bakery, Confectionery & Tobacco Workers International Union 25, No. 83-1416 (March 27, 1984). The United States Court of Appeals for the Fourth Circuit, conversely, has adopted a standard similar to the Board’s practice under Electronic Reproduction. Accord- ing to NLRB v. The Motor Convoy, supra, 673 F.2d at 734, if (as in the instant case) a collective bargaining agreement prohibits discrimination on the basis of pro- tected concerted activities under the Act, then any ruling by an arbitrator that an employee was terminated for “just cause” necessarily concludes that the discharge did not constitute an unfair labor practice. This is so, regard- less of the issues or evidence actually presented during the processing of the grievance. 673 F.2d at 736. This rule is designed to protect the “federal labor policy which strongly favors peaceful resolution of labor disputes through arbitration.” Jd. The Motor Convoy court explained that if employees could freely bypass remedies Petition for Writ of Certiorari 13 established through collective bargaining, then the rela- tive value of such procedures would diminish, thereby causing them to be included in “fewer collective bargain- ing agreements expanding unnecessarily the caseloads of the federal courts and the National Labor Relations Board.” /d. at 737. Accord, NLRB v. Magnetics Interna- tional, Inc., 699 F.2d 806 (6th Cir. 1983) (Meritt, J. dissenting). A third court has taken a view totally inhospitable to deferral. In Stephenson v. NLRB, 550 F.2d 535, 538 (9th Cir. 1977), the Ninth Circuit stated that even if the nor- mal Spielberg requirements are satisfied, the NLRB may not defer unless the grievance panel clearly decided the underlying unfair labor practice issues and only resolved matters within its competence. The Stephenson opinion betrays a severe lack of confidence in the collective bar- gaining mechanisms which were upheld so strongly in Motor Convoy. Thus, like the NLRB, the courts of appeals are in total disarray concerning the proper test for deferral. Furthermore, even when courts have accepted the stan- dard chosen by the Board, they have frequently reached different results on the facts as the relevant criteria are amorphous. See, e.g., Richmond Tank Car Co. v. NLRB., supra, 721 F.2d at 501-03; Liquor Salesman’s Union Local 2 v. NURB, supra, 664 F.2d at 326; NLRB v. Pincus Brothers, Inc.-Maxwell, supra, 620 F.2d at 374. This chaos can be made order only if this Court acts to do so. Il. BOTH THE RULING OF THE COURT OF APPEALS IN THIS CASE AND THE NLRB’S SUBSEQUENT FORMULATION OF DEFER- RAL STANDARDS IN OLIN CLASH WITH FEDERAL LABOR POLICY. The NLRB may not exercise its discretion in a man- ner that is inconsistent with federal labor policy, NLRB 14 Petition for Writ of Certiorari v. Yeshiva University, 444 U.S. 672, 691 (1980), in this instance, the policy favoring arbitration. The Board's recent deferral rulings, both as applied in this case and as refor- mulated in Olin, flout the congressional policy in favor of private grievance mechanisms for resolution of labor disputes. In the famous Steelworkers Trilogy, this Court estab- lished three principles relevant to this case. First, 29 U.S.C. $173(d) expresses a congressional preference for volun- tary resolution of labor disputes, which requires that “the means chosen by the parties for settlement of their differ- ences under collective bargaining agreement [be] given full play.” United Steelworkers v. American Manufactur- ing Co., 363 U.S. 564, 566 (1960). Second, if the parties to a collective bargaining agreement establish a manda- tory grievance procedure, any dispute between them must be resolved under that procedure unless the collective bargaining agreement specifically excludes the dispute from the procedure. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). Third, the results of a mandatory grievance procedure may only be overturned if the underlying award fails to draw “its essence from the collective bargaining agreement.” United Steel- workers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-98 (1960). These policies retain full force and vitality. W.R. Grace & Co. v. Local 759, International Union of Rubber Workers, 103 S.Ct. 2177 (1983). To safeguard the integrity of private grievance mech- anisms, this Court has held that employees may not deliberately bypass any remedy established by collective bargaining agreement. In Republic Steel Corp. v. Mad- dox, 379 U.S. 650 (1964), an employee attempted to sue for breach of a collective bargaining agreement without invoking a grievance procedure which the collective bar- gaining agreement established as the exclusive remedy for such claims. The Court held that litigation brought to Petition for Writ of Certiorari 15 circumvent the “procedure agreed upon by the employer and the union as the mode for redress,” must be dis- missed. 379 U.S. at 653. The Court explained that this rule furthers labor peace by enforcing the collective bar- gaining relationship between union and management. Conversely, a “rule which would permit an individual employee to completely sidestep available grievance pro- cedures . . . would deprive the employer and the union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances.” /d. There can be no doubt that the decision rendered below is inconsistent with Republic Steel. Teamsters Local 89, the exclusive collective bargaining representative for Bowlds and Perkins, negotiated clauses in the collective bargaining agreement with UPS which prohibit discrimi- nation for protected activity and provide an exclusive remedy for all alleged violations of the agreement, including the ban on discrimination. As the Court in Motor Convoy explains, limitations in deferral like that approved by the court below not only permit but encourage employ- ees to circumvent the mandatory grievance remedy. Republic Steel teaches that this result is inimical to federal labor policy. The NLRB’s standard in Olin is also at odds with federal labor policy. The new test would still permit an employee “to completely sidestep available grievance procedures” by foregoing such mechanisms entirely or by limiting the scope of grievances so that the requirements for deferral are not satisfied. Thus Olin still deprives “the employer and union of the ability to establish a uniform and exclusive method for orderly settlement of griev- ances.” This is precisely the vice prevented by Republic Steel. Only a return to the Board’s policy in Electronic Reproduction, which mandates deferral if a grievance procedure offers an “opportunity” for redress, will pro- tect grievance procedures from the threat posed by deliberate bypass. 16 Petition for Writ of Certiorari Throughout this litigation, the NLRB has placed heavy reliance upon §10(a) of the Act, 29 U.S.C. §160(a), which states that the power of the Board to prevent unfair labor practices “shall not be affected by any other means of adjustment or prevention that has been or may be estab- lished by agreement, law or otherwise.” The NLRB has contended that this provision gives it a carte blanche to defer or to refuse to deter at whim. That claim fails for two reasons. First, as already noted, once the Board chooses to exercise its discretion, it may not do so inconsistently or in a manner which compromises federal labor policy. Having adopted the Spielberg deferral doctrine, the NLRB is subject to judicial review in its application of the prin- ciple. Yeshiva University, supra, 444 U.S. at 691; NLRB v. Bell Aerospace Co., supra, 416 U.S. at 289. Second, to the extent that §10(a) insulates NLRB discretion on deferral from appellate review, it is over- riden by the more recent and specific language of §203 of the Labor-Management Relations Act, 29 U.S.C. §$§173(d), which provides that: Final adjustment by a method agreed upon by the parties is declared to be a desirable method for set- tlement of grievance disputes arising over the application or interpretation of an existing bargain- ing agreement. The preeminent effect of §203 is illustrated by Boys Mar- kets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970). In Boys Markets, the Court held that a union could be enjoined from violating a no-strike clause in a collec- tive bargaining agreement which contained mandatory grievance procedures. The result clashed with the lan- guage of the Norris-LaGuardia Act which expressly forbids the issuance of federal injunctions to halt labor disputes. The Court, however, explained that Norris-LaGuardia Petition for Writ of Certiorari 17 was enacted when Congress was preoccupied with “pro- tection of the nascent labor movement” and must be reconciled with the subsequent federal policies which favor collective bargaining and private mechanisms for regula- tion of labor disputes. 398 U.S. at 250. The Boys Markets opinion recognized that most employers would not accept collective bargaining agree- ments which establish private grievance procedures unless the quid pro quo, a no-strike pledge, was enforceable. The Court concluded that the literal language of Norris- LaGuardia must give way “under the circumstances” in order to prevent the mass boycott of employers which would threaten the efficacy of private grievance mecha- nisms. 398 U.S. at 253. This case falls within the logic of Boys Markets. Sec- tion 10(a) was part of the original Wagner Act passed in 1935, only three years after Norris-LaGuardia. The Boys Markets opinion specifically recognized that the Wagner Act was one of the “older statutes” enacted when Con- gress was preoccupied with protecting “the nascent labor movement.” Consequently, like Norris-LaGuardia, §10(a) of the Act must be interpreted in light of the modern trend in favor of private grievance mechanisms, and its “literal language” may not be allowed to thwart the poli- cies recognized by this Court in Republic Steel and the Steelworkers Trilogy or by Congress in §173(d), enacted in 1947. As already noted, the Fourth Circuit recognized in Motor Convoy that the very existence of private griev- ance mechanisms would be threatened if employees could circumvent them, because such remedies could then become pointless, and thus would be omitted from collec- tive bargaining agreements. 673 F.2d at 737. This is precisely the same result that the Boys Markets Court feared would result if the “literal language” of Norris- LaGuardia were permitted to bar injunctions enforcing ae 18 Petition for Writ of Certiorari no-strike pledges. Consequently, the Board’s construc- tion of §10(a) would pose a serious impediment to the policy in favor of peaceful resolution of labor disputes and must be rejected. lil. ALTERNATIVELY, THIS CASE SHOULD BE REMANDED TO THE NLRB FOR RECONSID- ERATION IN LIGHT OF OLIN. If the Court does not decide to use this case as a vehicle to review the deferral issue, then at the very least, the litigation should be remanded to the Board for recon- sideration in light of Olin, which it adopted as a deferral standard during the pendency of this litigation. Were the Board to apply Olin to the facts of this case, UPS would certainly prevail. The opinion below is plainly inconsistent with Olin. Indeed, Member Zimmerman, in dissenting from the Olin decision, specifically relied on the opinion of the Court of Appeals. 268 N.L.R.B. No 86 at 22. Application of the new deferral standard to the facts of this case clearly requires a different result. The case which Bowlds and Perkins submitted to the grievance committees is nearly identical to that which the General Counsel presented to the Board, turning almost entirely on whether the griev- ants actually falsified their timecards and overstayed their break periods. Bowlds, moreover, explicitly raised the discrimination issue and informed the joint panels of the activities for which he allegedly suffered retaliation. As the “factual issues” in the grievance and unfair labor practice proceedings were parallel and basically the same evidence was involved in both instances, the Olin test for deferral is satisfied. This Court has recognized that when the Board adopts a new rule, a case which is on appeal should at least be remanded for consideration in light of the change in pol- Petition for Writ of Certiorari 19 icy. E.g., Woodkraft Division v. NLRB, 52 U.S.L.W. 3700 (March 19, 1984), remanding case to Court of Appeals with instructions to remand to the Board in light of Clear Pine Mouldings, Inc., 268 N.L.R.B. No. 173 (February 22, 1984). The instant case was still on appeal when Olin was issued. UPS should receive the benefit of the new standard. CONCLUSION For the foregoing reasons, UPS requests the Court to grant this Petition for Certiorari. Respectfully submitted, BERNARD G. SEGAL JAMES D. CRAWFORD FRANK C. SABATINO Attorneys for Petitioner SCHNADER, HARRISON, SEGAL & LEWIS Suite 3600 1600 Market Street Philadelphia, Pennsylvania 19103 (215) 751-2162 Of Counsel. Dated: June 22, 1984 Appendix UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 82-3318 UNITED PARCEL SERVICE, INC. j Petitioner NATIONAL LABOR RELATIONS BOARD, Respondent Before: GiBBONS, HUNTER and ROSENN, Circuit Judges Upon the consideration of the petition for rehearing by petitioner before the original panel, ItisO R D E R E D that the petition for rehearing before the original panel is denied. By THE Court JOHN J GIBBONS Circuit Judge Dated: March 15, 1984 Al A2 Court of Appeals Judgment UNITED STATES COURT OF APPEALS FoR THE THIRD CIRCUIT No. 82-3318 UNITED PARCEL SERVICE, INC. Petitioner NATIONAL LABOR RELATIONS BOARD, Respondent PETITION FOR REVIEW NATIONAL LABOR RELATIONS BOARD Board Nos. 25-CA-11313 & 25-CA-11313-2 Argued February 15, 1983 Before: GIBBONS, HUNTER and ROSENN, Circuit Judges JUDGMENT This cause was originally before this Court on a peti- tion filed by United Parcel Service, Inc., Owensboro, Kentucky, to review an order of the National Labor Relations Board issued against said Petitioner, its offi- cers, agents, successors, and assigns on May 12, 1982, and upon a cross-application filed by the National Labor Relations Board to enforce said order. The Court heard argument of respective counsel on February 15, 1983, and considered the briefs and transcripts of record filed in this cause. On April 18, 1983, the Court, being fully advised in the premises, issued its opinion enforcing the Board’s order in part, and vacating and remanding it in oart to the Board for further proceedings. A judgment Court of Appeals Judgment A3 was entered April 20, 1983. On November 14, 1983, the Supreme Court of the United States granted the petition of United Parcel Service, Inc. for certiorari, vacated the judgment entered April 20, 1983, and remanded the cause for further consideration in light of National Labor Rela- tions Board v. Transportation Management Corp., 462 U.S. (1983). It is hereby ORDERED and ADJUDGED that the judgment entered April 20, 1983 be and is hereby vacated and it is further ORDERED and ADJUDGED that the Board’s Order be and is hereby enforced in full. By THE Court, JAMES Hunter, III, Circuit Judge ATTEST: Sally Mrvos, Clerk Dated: January 19, 1984 A4 UNITED STATES COURT OF APPEALS For THE THIRD CIRCUIT No. 82-3318 UNITED PARCEL SERVICE, INC. ‘ Petitioner NATIONAL LABOR RELATIONS BOARD, Respondent PETITION FOR REVIEW NATIONAL LABOR RELATIONS BOARD Board Nos. 25-CA-11313 & 25-CA-11313-2 Argued February 15, 1983 Before: GIBBONS, HUNTER and ROSSEN, Circuit Judges Opinion Filed April 18, 1983 James D. Crawford (Argued), Bernard G. Segal, Martin Wald, Frank C. Sabatino, Schnader, Harrison, Segal & Lewis, 1719 Packard Building, Philadelphia, PA 19102, Matthew R. Westfall, Baird, Kirven, Westfall & Talbott, 501 So. Second Street, Louisville, Kentucky 40202, Of Counsel Attorneys for Petitioner. Joseph A. Oertel (Argued), William A. Lubbers, General Counsel, John E. Higgin, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Assoc. General Counsel, Na- tional Labor Relations Board, 1717 Pennsylvania Ave., NW, Washington, D.C. 10570, Attorneys for Respondent. Court of Appeals Opinion AS OPINION OF THE COURT HuNTER, Circuit Judge: 1. On May 21, 1982, the National Labor Relations Board (“Board”) issued a decision and order holding that United Parcel Service, Inc. (“UPS”) had committed cer- tain unfair labor practices under the National Labor Relations Act, 29 U.S.C. §§ 151-169 (1976 & Supp. V 1981) (“Act”). The Board held that UPS had violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1976), by promulgating, maintaining, and enforcing an unlaw- fully broad no-distribution of literature rule. It also held that UPS had violated sections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act, 29 U.S.C. § 158(a)(1), (a)(3), (a)(4) (1976), by unlawfully discharging Robert W. Bowlds and David E. Perkins, two UPS employees. 2. This action is a petition for review and a cross- application for enforcement of that order. For the rea- sons stated herein we wili enforce in part, and we will remand in part. A. Driver Robert Bowlds 3. Bowlds was originally hired by UPS in 1965. For the six or seven years prior to the instant unfair labor proceeding, he worked as a “feeder driver” out of UPS’s Owensboro, Kentucky facility.’ Bowlds also served as the Teamsters Local 89 steward at the Owensboro terminal.” 1. As part of its operation, UPS employs feeder drivers who drive fixed delivery routes between UPS facilities. Those drivers operate out of a home location and shuttle packages to and from specific distribution depots. At those distribution points the packages are resorted and then loaded on to other UPS trucks for further delivery. 2. At all times relevant to this action, Teamsters Local 89 was the exclusive bargaining agent for the Company’s employees. App. at 142a n.1. A6 Court of Appeals Opinion In his position as steward Bowlds filed grievances, partic- ipated in grievance hearings, and assisted the Professional Drivers Council (“PROD”), a Teamsters’ organization. Since 1975 Bowlds had also been a member of “UPSurge,” a nationwide organization of UPS employees dedicated to improving their wages, hours, and working conditions. Bowlds testified that he had been openly involved with both UPSurge and PROD at the Owensboro terminal” and had distributed their literature in the presence of UPS supervisors. App. at 413a-15a, 419a-23a.* 4. Bowlds had a running history of disputes with UPS. On April 24, 1978, UPS discharged Bowlds, assert- edly because he falsified his timecard and overextended his rest breaks.” On May 8, 1978, as a result of a contrac- tual grievance proceeding, Bowlds was reinstated, and the discharge was converted into a suspension. On May 24, 1978, Bowlds was issued a “final warning” for taking excessive time on his breaks. That warning was rescinded on June 14, 1978, also after a grievance proceeding. On August 4, 1978, UPS discharged Bowlds for a second time, again asserting that he had overextended his breaks and falsified his timecard. On October 3, 1978, a griev- ance panel reduced the discharge to a “Disciplinary Suspension and Final Warning.” 3. In the instant case the ALJ found that employee activity on behalf of PROD and UPSurge constituted concerted protected activ- ity under the Act. App. at 143a. 4. In addition in March of 1977, Bowlds initiated a class action suit against UPS alleging that UPS had violated a Kentucky statute requiring employers to grant periodic ten-minute rest breaks. 5. For UPS's distribution systems to function properly, all feeder drivers must keep to a preset schedule. Departure times, rest stops, and arrival times are all predetermined to ensure the continuous and efficient flow of packages from terminal to terminal. Company policy requires that a driver's timecard accurately reflect the amount of time that he spends on the road and on his breaks. App. at 832a-36a; see app. at 145a n.4. 158a n.16; 366a-68a, 408a-10a, 980a-8 La. Court of Appeals Opinion A7 5. Both the May 24, 1978 final warning letter and the August 4, 1978 discharge were the subject of an unfair labor practice proceeding brought by the General Coun- sel against UPS. The Board held that those actions violated sections 8(a)(1) and 8(a)(3) the Act. United Parcel Serv- ice, Inc., 252 N.L.R.B. 1015, 1019 (1980), enforced, 677 F.2d 421 (6th Cir. 1982)(“United Parcel Service I”).° The Board issued a cease and desist order, awarded Bowlds back pay, and ordered the May 24, 1978 warning letter expunged from his file. United Parcel Service 1, 252 N.L.R.B. at 1016, 1023. 6. UPS claims that in July and August of 1979 it again became concerned about Bowlds’ consistent late arrival at the Owensboro Center. The Company decided to observe Bowlds on the night of August 27-28 during one of his normally scheduled runs.’ According to the supervisors who trailed him, Bowlds overstayed his allot- ted rest periods on that run by forty-three minutes. On the next night the Company suspended Bowlds allegedly for overextending his breaks and falsifying his timecard. Three days later UPS informed Bowlds that he was dis- charged. B. Driver David Perkins 7. Perkins has been employed at UPS’s Campbells- ville, Kentucky facility as a feeder driver since 1971 and, 6. In its decision the Board noted several instances where Com- pany supervisors indicated shortly after the issuance of the May 24, 1978 warning letter that they were going to “get” Bowlds. United Parcel Service 1, 252 N.L.R.B. at 1021. 7. UPS hs a policy of putting under observation drivers who are suspected of excessive delays. In the past ten years several feeder drivers have been placed under observation for allegedly overstaying their rest breaks. A driver will not be put under observation, how- ever, until the situation has been discussed between the driver and his supervisor and until after the driver has had an opportunity to remedy the problem. App. at 144a & n.3; 864a-66a. A8& Court of Appeals Opinion like Bowlds, has actively been involved with union activ- ity. He testified that he had openly distributed UPSurge and PROD material at Campbellsville several times, and that he had collected money and solicited signatures for the class action suit brought by Bowlds against UPS. 8. On February 14, 1979, Perkins filed a grievance protesting UPS's alleged failure to assign him sufficient work. That grievance was resolved against him. App. at 90a; 648a-50a. Perkins testified that two weeks later he had a conversation with Tom Mouser, the Campbellsville Terminal Manager, about obtaining some work pants. According to Perkins, Mouser stated: “Perkins, we’re trying to figure out a way to fire your ass anyway. We won't have to get you any.” App. at 652a. That statement was made in front of two other employees, Bobby Pierce and Eddy O’Banion, who both corroborated Perkins’ version of events. App. at 150a; 224a-25a, 234a-35a, 652a-53a. 9. Perkins also stated that in February or March of 1979, Mouser approached him at the Campbellsville facility and brought up the subject of UPSurge. He testified: [Mouser] asked me if I had been distributing some papers around Campbellsville, and I said yes. And I told him we had the right to as long as the man wasn’t on the clock working. And he responded, “Well, I'd rather you didn’t do it.” App. at 643a. At the time Mouser made his statement, Perkins was not distributing literature. Perkins testified that despite Mouser’s statement, he continued to distrib- ute UPSurge material at least two more times over the next few months. App. at 644a-45a. 10. UPS contends that throughout the summer of 1979, Perkins habitually returned late to Campbellsville after completing his regularly scheduled route. In con- junction with its observation of Bowlds, UPS decided to Court of Appeals Opinion AQ observe Perkins on the night of August 27-28. Company supervisors testified that they followed Perkins to a rest stop where they observed him everstay his rest break. On the next evening Perkins’ supervisor told him that he was suspended for overextending his rest break and falsifying his timecard. On August 30, 1979, Perkins was formally told that he was being discharged. C. The Grievance Proceedings 11. Both Bowlds and Perkins filed grievances over their discharges under the grievance procedures in their union contract. An initial meeting was held on Bowlds’ grievance on September 11, 1979. Bowlds’ grievance was read into the record,* and Bowlds stated that he was inno- 8. Bowlds’ grievance states [sic]: On Aug 28th I was called to work early at 7:00 PM and told by Ben Cissel that I was suspended for overextending my break and falsifying a time card. Cissel said he could not give me the details and date therefore denying me a chance to prove myself innocent. I[t] was not until Aug 31st at 9:00 AM that I was told that I was terminated and questioned about my 15 min. breaks the night of Aug 27th. I think the Company withheld the details of this charge against me as long as possible to make it harder to defend myself. I did not overextend my break or falsify. Any- time I stoped my truck, other than the 15 minute break shown on my card, was because I was very sleepy and had to pull off the road long enough to get myself woke up so I would not have an accident. Although I could get myself awake and alert tor short periods I continued to be sleepy & drowsy, the rest of the night. I have not been late with my load nor have I ever missed a scheduled days work. But once again I think I was terminated for my union activ- ities, union related activities and my direct involvement in the class action suit to get the company to comply with state law on 10 minutes Rest Periods. I think the company singled me out to build a case against me in the NLRB hearing set for Sept 11th. I ask the Union treat me equal to all the other feeder driv- ers and see the Company has not. I ask that I be reinstated fully with pay for all time lost, and be allowed to do an honest and dependable job. App. 120a-21la (emphasis in original). Al0 Court of Appeals Opinion cent of the UPS’s charges. UPS presented testimony supporting its claim that Bowlds had overextended his breaks and falsified his time card. The panel deadlocked, and the grievance was referred to the state level. The grievance was heard before the state panel on October 9, 1979, but the parties again deadlocked. On October 30, 1979, the Joint Area Conference heard Bowlds’ griev- ance but the parties again were unable to resolve the dispute. Finally on November 20, 1979, the grievance was placed on the Joint Area Conference’s “Deadlocked Agenda,” and after a hearing Bowlds’ discharge was upheld. 12. Perkins’ grievance was also initially heard on September 11, 1979. A UPS supervisor testified that Per- kins had been observed taking a thirty-two minute break although his timecard only reflected a fifteen minute break. Perkins’ grievance was read,’ and two affidavits were sub- mitted in his defense. The hearing was deadlocked, and Perkins’ grievance was referred to the state level. After a hearing before the state panel, Perkins was granted immediate reinstatement without backpay. 13. Following their discharges both Bowlds and Per- kins filed charges with the Board’s Regional Director claiming that UPS had unlawfully discriminated against 9. Perkins grievance states: On the night of Aug. 28, 1979 I was suspended for aledgedly extending my brake and falsifying my time card. I was given no time or dates of this occurance to defend myself. On Aug. 30, 1979 I was called to work at my regular start time only to be fired for the above acuations. They did not have the exact times they recorded me but only the length I was there which was 32 minutes and a lie. The above charges are degrading and have damaged my Employment Record. I want to be compensated for all time off and all documents of this occurance stricken from my records. App. at 86a. Court of Appeals Opinion All them because of their protected activities. On October 24, 1979, the Regional Director issued a consolidated complaint charging UPS with unfair labor practices. The complaint alleged that UPS had violated section 8(a)(1) of the Act by unlawfully promulgating and enforcing a rule prohibiting distribution of UPSurge’s written mate- rial on UPS property.'” Order Consolidating Cases, Consolidated Complaint and Notice of Hearing { 5, 9, 11, app. at 3a, 4a. It also alleged that UPS had violated sections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act by unlaw- fully discharging Bowlds and Perkins. /d. at § 6, 7, 8, 9, 11, app. at 3a, 4a. 14. An Administrative Law Judge held hearings and issued a decision on October 3, 1980. He initially deter- mined that the General Counsel’s complaint should not be dismissed on Spielberg deferral grounds.'' Turning to the merits he found that in February and March of 1979, UPS had promulgated, maintained, and enforced an “ambiguous” written rule prohibiting distribution of lit- erature on UPS property at any time. The ALJ found that Mouser enforced this rule, pointing specifically to Mouser’s statement of “I’d rather you didn’t do it,” made to Perkins concerning the distribution of UPSurge mate- rial. App. at 156a-57a.'* Based on these facts the ALJ 10. Employees have the right to distribute union literature in nonworking areas of the employer's premises during nonwork periods. Employers may not interfere with that right except to the extent necessary to maintain production or discipline. See Eastex, Inc. v. NLRB, 437 U.S. 556, 570-75 (1978); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-05 (1945). 11. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955). 12. Mouser denied that he ever made that statement, but the ALJ found him not to be a credible witness. Both the Board and this court are generally bouad by credibility determinations made by the ALJ. See Behring International, Inc. v. NLRB 675 F.2d 83, 86 (3d Cir. 1982). petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-438); Standard Dry Well Products, Inc., 91 N.L.R.B. 544 (1950), enforced, 188 F.2d 362 (3d Cir. 1951). Al2 Court of Appeals Opinion held that UPS had violated section 8(a)(1) of the Act. 15. Turning to the discharges of Bowlds and Per- kins, the ALJ found not credible the supervisors’ testimony that Bowlds and Perkins had overextended their breaks. App. at 160a, 162a. He determined that, as a general ma:ter, late returns by Bowlds and Perkins were due to delays in getting out of other terminals. /d. The ALJ also found that Bowlds and Perkins had been singled out for “extraordinary surveillance” because of their union activ- ity. Id. While the ALJ did find some discrepancies on the two employees’ timecards, he held that they were of a “minor nature.” App. at 162a. The ALJ concluded: In the instant case, I have found that the General Counsel made a prima facie showing sufficient to support the inference that protected conduct was the motivating factor in the suspension and discharges of Bowlds and Perkins, and in my view the Respondent has failed to demonstrate that such actions would have taken place in the absence of the protected conduct. In acordance therewith, the Respondent is in violation of sections 8(a)(1), (3), and (4) of the Act. App. at 163a. 16. UPS filed exceptions to the ALJ’s decision on December 12, 1980. On May 21, 1982, the Board issued a decision and order adopting the findings and conclu- sions of the ALJ. United Parcel Service, Inc., 261 N.L.R.B. No. 134 (1982) (“United Parcel Service II”). The Board, however, slightly changed the basis for its finding of an 8(a)(1) violation. In affirming the Administrative Law Judge’s conclu- sion that Respondent violated Sec. 8(a)(1) of the Act by promulgating, maintaining, and enforcing an unlawfully broad no-distribution rule, we refer solely to the implied restrictions against distribution on nonworking time which Supervisor Mouser commu- nicated to employee Perkins in a February or March Court of Appeals Opinion Al3 1979 conversation. We find no need to decide whether Respondent’s written no-solicitation, no distribution rules also violated Sec. 8(a)(1). Id.at 2 n.3. The Board specifically upheld the ALJ's “board” remedial order that the Company cease and de- sist “in any like or related manner” from interfering with employees’ section 7 rights. The Board found that the award was warranted because “Respondent has shown a proclivity to violate the Act and has engaged in such egre- gious and widespread misconduct as to demonstrate a general disregard for the employees’ fundamental Sec. 7 rights.” Id. at 2 n.4; see NLRB v. Local 483 and Local 11, 672 F.2d 1159, 1168 (3d Cir. 1982). 17. UPS filed a petition to review the Board's deci- sion on July 8, 1982. The Board filed a cross-application for enforcement on August 17, 1982. A. The Section 8(a)(1) Violation— Distribution of UPSurge Literature 18. UPS contends that we should not enforce the Board’s order holding that UPS violated section 8(a)(1) of the Act. First UPS asserts that Mouser’s statement, relied upon by the Board for its finding of a section 8(a)(1) violation, was not part of the General Counsel’s consoli- dated complaint nor the basis for the ALJ’s decision. UPS claims that the Board’s “eleventh hour modification” of the issue prejudiced it from properly asserting a defense to the Board’s charges because at the evidentiary hearings it focused its efforts on disproving the alleged written policy rather than on rebutting any alleged individual coercion by Mouser. The Board claims that UPS did have adequate notice of the charges against it. It argues that Al4 Court of Appeals Opinion paragraphs 5(c) and 9 of the consolidated complaint'” adequately informed UPS of the allegation that Mouser’s statement violated the Act. 19. Both the Administrative Procedure Act and the Board’s own rules require that a complaint properly inform a charged party of any asserted violation. 5 U.S.C. § 544(b)(3)(1976); 29 C.F.R. § 102.15 (1982)."* “The Board may not make findings or order remedies on violations 13. Paragraph 5 of the Order Consolidating Cases, Consoli- dated Complaint and Notice of Hearing reads: (a) On or about an unknown date in March, 1979, the Respondent at its facility promulgated and since said date has maintained the following rule: No distribution of UPSurge written material on the Respondent’s property at any time. (b) The Respondent promulgated the rule described above in subparagraph 5(a) in order to discourage its employees from joining, supporting or assisting UPSurge, an organization of employees which is designed to inform and influence the Respondent's employees concerning the actions and policies of the Respondent and Teamsters Local 710 and Teamsters Local 89 with respect to wages, hours, and working conditions. (c) On or about an unknown date in March, 1979, the Respondent by its officer and agent Tom Mouser, maintained and enforced the rule described above in sub-paragraph 5(a) by pro- hibiting its employees from passing out UPSurge materials at anytime while they were on company property. Paragraph 9 reads: By the acts described above in paragraph 5 through 8, and by each of said acts, the Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. App. at 2a-4a (emphasis added). 14. General principles of due process also requre that persons charged with unlawful conduct be given prior notice of the charges and an opportunity to be heard in defense before the Government Court of Appeals Opinion Al5 not charged in the General Counsel’s complaint or liti- gated in the subsequent hearing.” George Banta Co. v. NLRB, 686 F.2d 10, 17 (D.C. Cir. 1982) (quoting NLRB v. Blake Construction Co., 663 F.2d 272, 279 (D.C. Cir. 1981) (citing cases)), petition for cert. filed, 51 U.S.L.W. 3554 (U.S. Jan. 10, 1983) (No. 82-1162); see Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073-75 (ist Cir. 1981). Even where evidence supporting a remedial order is in the record, courts have refused to grant enforcement of a Board order in the absence of either a supporting allegation in the complaint or a meaningful opportunity to litigate the underlying issue before the ALJ. See, e.g., Blake 663 F.2d at 279; Montgomery Ward & Co. v. NLRB, 385 F.2d 760, 763-64 (8th Cir. 1967). 20. Although the thrust of the original complaint was that UPS’s written policy violated the Act, it specifi- cally referred to the actions Mouser took in March of 1979 to enforce the no-distribution rule. More impor- tantly, UPS had a meaningful opportunity to litigate the issue Of whether Mouser actually made the alleged state- ment or, if made, whether the statement was coercive. On direct examination by UPS, Mouser specifically de- nied that he had ever made the disputed statement to Perkins. App. at 1015a-16a. In reaching its conclusions, the Board merely accepted the ALJ’s findings crediting Perkins’ testimony over Mouser’s. United Parcel Service IT, 261 N.L.R.B. No. 134, at 2 n.2; see app. at 156 n.14. Based on this record we find that UPS had sufficient notice about Mouser’s statement to defend adequately the charge that that statement constituted a section 8(a)(1) violation under the Act and therefore was not unduly prejudiced by the Board’s holding, cf. Soule, 652 F.2d at 1074 (test is one of fairness under the circumstances of each case). 14. (Contd) can take enforcement action. Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1182 (Sth Cir. 1982); Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir. 1981). Al6 Court of Appeals Opinion 21. UPS’s second argument against enforcement is that the Board’s conclusion that Mouser’s statement vio- lated section 8(a)(1) of the Act is not supported by substantial evidence. UPS asserts that Mouser’s “innoc- uous” statement should not be considered coercive because the utterance was extremely short and because there is no evidence that it was made in a threatening tone. 22. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in sec- tion [7] of this title.” 29 U.S.C. § 158(a)(1)(1976). To establish a violation of that section, “it need only be shown that ‘under the circumstances existing, [the employer’s conduct] may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.’ ” United States Steel Corp. v. NLRB, 682 F.2d 98, 101 (3d Cir. 1982) (emphasis added) (quoting NLRB v. Armcor Industries, Inc., 535 F.2d 239, 242 (3d Cir. 1976) (quoting Local 542 v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), cert. denied, 379 U.S. 826 (1964)); see NLRB v. Keystone Pretzel Bakery, Inc., 696 F.2d 257, 259-60 (3d Cir. 1982) (en banc). Our standard of review is whether there is substantial evidence on the record as a whole, including any evidence detracting from the Board’s view, to support the Board’s finding of a violation. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); United States Steel Corp., 682 F.2d at 101. 23. In affirming the ALJ’s determination that UPS violated section 8(a)(1) of the Act, the Board relied solely on Mouser’s statement to Perkins that he would “rather not” have Perkins distribute literature. 261 N.L.R.B. No. 134, at 2 n.3. We have recently held that where an inci- dent of alleged interference with the distribution of literature is trivial and isolated and only imposes a negli- gible burden on employees’ rights, it will not rise to the level of a violation of the Act. Graham Architectural Court of Appeals Opinion Al7 Products Corp. v. NLRB, 697 F.2d 534, 542 (3d Cir. 1983). The Board argues that Mouser’s statement is not an isolated comment but rather part of a long-standing pattern of restraining the distribution of literature during nonworking time. It asserts that when Mouser’s state- ment is examined against the “backdrop of. . . hostility” to section 7 rights, it should be considered coercive and therefore violative of the Act. 24. Viewing all the circumstances, we hold that sub- stantial evidence exists in the record to uphold the Board’s finding of a section 8(a)(1) violation. It is true that Mous- er’s statement, on its face, could be considered noncoercive. Perkins, however, had recently filed a grievance against Mouser and UPS. App. at 648a-50a; see app. at 90a. On February 28, 1979, in the presence of two other employ- ees, Mouser said to Perkins “we’re trying to figure out a way to fire your ass.” App. at 150a; 652a. The ALJ took official notice that the Board had previously determined that UPS and its supervisors had engaged in various unfair labor practices, in connection with UPS’s opposition to employee involvement with UPSurge. App. at 142a-43a. In light of these facts we think the record supports the Board’s finding that Mouser’s statement tended to impose unlawful restrictions on Perkins’ right to distribute liter- ature.'” Accordingly, we affirm the Board’s holding that the statement violated section 8(a)(1)."° 15. We agree with the ALJ’s statement that “the mere fact that the tone of the conversation may have been friendly or conciliatory does not, of course, erase the implied restrictions by Mouser.” App. at 157a. 16. In its opening brief and in its reply brief, UPS raised a third argument against enforcing the Board’s order. It asserted that the Board’s “re-characterization” of the § 8(a)(1) violation presented a statute of limitations problem under § 10(b) of the Act, 29 U.S.C. § 160(b) (1976), because Mouser’s alleged statement occurred more than six months prior to the filing of the unfair labor practice charge. Al18 Court of Appeals Opinion B. The Sections 8(a)(1), 8(a)(3),.and 8(a)(4) Viola- tions — The Discharges of Bowlds and Perkins 25. UPS urges us to reject the Board’s conclusion that the discharges of Bowlds and Perkins violated sec- tions 8(a)(1), 8(a)(3),'’ and 8(a)(4)'* of the Act. First, it 16. (Cont'd) On December 6, 1982, the Board filed a motion to strike UPS’s statute of limitations defense because it had not been properly pre- sented to the Board. See 29 U.S.C. § 160(e) (1976). In response to the Board’s motion, UPS argues that it did raise the issue, pointing to one sentence in its brief submitted in support of its exceptions to the ALJ’s decision. The Board’s regulations, however, state that a matter must be included in a party’s exceptions before it will be considered by the Board. See 29 C.F.R. § 102.46 (1982); see also 29 C.F.R. § 102.34(b) (brief filed in support of exceptions not included in record of case). UPS concedes that it did not raise the issue in its formal exceptions, and thus under § 10(e) of the Act and the Board’s regulations, it is barred from raising that issue before us. UPS further argues that even if it did not meet the requirements of § 10(e), it should not be precluded from raising the statute of limitations issue because “the issue was not interjected into the liti- gation until the NRLB’s final order.” Cf. NLRB v. Richards, 265 F.2d 855, 862 (3d Cir. 1959) (party not barred from raising before court issue of law initially created by the Board’s order). The ALJ's holding, however, specifically based the § 8(a)(1) violation on activ- ity in February and March of 1979. App. at 157a. Thus the statute of limitations issue could have been raised by UPS before the Board in response to the ALJ’s finding of when a violation occurred. UPS’s failue to raise that issue before the Board preciudes our review at this stage. 17. Section 8(a)(3) of the Act states: It shall be an unfair labor practice for an employer — (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organi- zation: 29 U.S.C. § 158(a)(3) (1976). 18. Section 8(a)(4) of the Act states: Court of Appeals Opinion Al9 argues that the Board abused its discretion by refusing to defer to the grievance panel decisions concerning the dis- charges of Bowlds and Perkins. Second, it argues that if we find that the Board properly exercised its jurisdiction, we should not enforce the Board’s order because the General Counsel failed to meet its threshold burden of establishing a prima facie case of unlawful discrimination. Finally, it argues that, even assuming establishment of a prima facie case, the Board’s order can not be enforced because the ALJ erroneously shifted to UPS the burden of proving that the discharges were not discriminatory. 1. Deferral to the Grievance Proceedings 26. In a series of decisions beginning with Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), the Board has ruled that it will defer to an arbitrator’s award if four criteria are met: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; (3) the deci- sion was not “clearly repugnant” to the purposes and policies of the Act; and (4) the arbitration has decided the statutory issue currently under review. Suburban Motor Freight, Inc., 247 N.L.R.B. 146 (1980); Collyer Insulated Wire, 192 N.L.R.B. 837 (1971); Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (Ist Cir. 1964); see Hammermill Paper Co. v. NLRB, 658 F.2d 155, 159-61 (3d Cir. 1981), petition for cert. filed, 50 U.S.L.W. 3622 (U.S. Jan. 29, 1982) (No. 81-1438); NLRB v. General Warehouse Corp., 643 F.2d 965, 968-71 (3d Cir. 1981); NLRB v. Pincus Brothers, 18. (Cont'd) It shall be an unfair labor practice for an employer — (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter; 29 U.S.C. § 158(a)(4) (1976). A20 Court of Appeals Opinion Inc.-Maxwell, 620 F.2d 367 (3d Cir. 1980); cf. Schaefer v. NLRB, 697 F.2d 558 (3d Cir. 1983) (Board deferral to private settlement agreements).'’ The Board’s policy of deferral is designed to promote industrial peace and sta- bility by encouraging the private resolution of disputes. Spielberg, 112 N.L.R.B. at 1082.” In reviewing a Board decision not to defer to an arbitrator’s award, we are limited to determining whether the Board abused its dis- cretion. Herman Brothers, Inc. v. NLRB, 658 F.2d 201, 207 (3d Cir. 1981); General Warehouse Corp., 643 F.2d at 968 & n.10; see NLRB v. South Central Bell Telephone Co., 688 F.2d 345, 350 & n.7 (Sth Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No. 82-1016). 19. The first three parts of the Board’s test were originally for- mulated in Spielberg. 112 N.L.R.B. at 1082. The fourth element. actually “a prerequisite to the Spielberg standards,” General Ware- house, 643 F.2d at 969 & n.12, was articulated in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir. 1964), as a separate and distinct factor. NLRB v. Motor Convoy, Inc., 573 F.2d 734, 735 & n.3 (4th Cir. 1982); see Profes- sional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34 (1982). See generally NLRB v. Babcock and Wilcox Co., 697 F.2d 724 (6th Cir. 1982); NLRB v. South Cent. Bell Tel. Co., 688 F.2d 345 (Sth Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No. 82-1016); Liquor Salesmen’s Union Local 2 v. NLRB, 664 F.2d 318 (2d Cir. 1981), cert. denied, 102 S. Ct. 2236 (1982); NLRB v. Designcraft Jewel Indus., 675 F.2d 493 (2d Cir. 1982); Pioneer Finishing Corp. v. NLRB, 667 F.2d 199 (1st Cir. 1981), petition for cert. filed, 50 U.S.L.W. 3949 (U.S. May 22, 1982) (No. 81-2162); Murphy & Sterlacci, A Review of the National Labor Relations Board’s Deferral Policy, 42 Ford. L. Rev. 291 (1973); Note, Spielberg Recon- sidered — Problems in Application and Content of the Deferral Doctrine, 49 Ford. L. Rev. 1116 (1981); Note, Limiting Deferral Under the Spielberg Doctrine, 67 Va. L. Rev. 615 (1981). 20. See William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16-17 (1974); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 270-72 & n.7 (1964); Hammermill, 658 F.2d at 159 n.8: General Warehouse Corp., 643 F.2d at 968 n.11. Court of Appeals Opinion A21 27. In the instant case, no evidence of Bowlds’ and Perkins’ protected activities was presented at any stage of the grievance proceedings. Tom Trenaman, the Local 89 Business Agent who represented both employees before the grievance panel, admitted that he never met with Bowlds or Perkins before the grievance panel meetings, never went over their testimony with them, and never introduced any evidence concerning their PROD or UPSurge activities. Other than a passing reference in Bowlds’ grievance, no mention was made before the panel of the class action lawsuit against UPS, of the other grievances filed by Bowlds or Perkins, or of their pre- vious testimony before the Board.*' The panel decisions made no reference to any concerted or protected activ- ities on the part of Bowlds or Perkins. 21. UPS argues that because Bowlds’ grievance mentions his union activities and because it was read into the record at every stage of the proceedings, the grievance panel was sufficiently apprised of the statutory issues to require deference by the Board under Spiel- berg. We have stated: The Board’s fourth requirement will be deemed net “[i]f there is substantial and definite proof that the unfair labor practice issue and evidence were expressly presented to the arbitrator and /that] the arbitrator's decision indisputably resolve[d] the [unfair labor practice] issue. . . .” Stephenson, 550 F.2d at 538 n.4 (emphasis added). If “the arbitrator’s decision is ambiguous as to the resolution of the statutory issue, [we must hold that] the ‘clearly decided requirement has not been met.’” /d. General Warehouse, 643 F.2d at 969 n.16 (quoting Stephenson v. NLRB, 550 F.2d 535 (9th Cir. 1977); see Hammermill, 658 F.2d at 160-61. Mere passing reference in Bowlds’ grievance to his protected activities is not “substantial and definite proof” that the statutory issue was “indisputably resolve[dj.” We note that the Board’s refusal to defer in the instant case is consistent with its treatment of the same issue in United Parcel Serv- ice I. In that decision the Board stated: Because the Union’s failure both to advocate Bowlds’ claim that he was discharged for dissident activities and to present evidence A22 Court of Appeals Opinion 28. We find that the Board properly exercised its jurisdiction over the unfair labor practice proceedings. We have previously held that “for the Board’s deferral policy not to be one of abdication, the Board must be presented with some evidence that the statutory issue has actually been decided.” Generaly Warehouse, 643 F.2d at 969 (footnotes omitted). The instant record is devoid of any such evidence. There is nothing to indicate that the statutory issue was fully presented to or considered by the grievance panels.” Based on that record, the Board did not abuse its discretion by refusing to defer.** 21. (Cont'd) on that claim, we find deferral inappropriate. In these circum- stances, it is not enough that Bowlds’ grievance was read at each step of the proceeding, even though in the grievance Bowlds contended that he was discharged for his “union activities and involvement in a class action suit. . . .” The mere presentation of the contention, without more, cannot support deferral. 252 N.L.R.B. 1015, 1016 (1980) (footnote omitted). The Sixth Cir- cuit affirmed the Board’s ruling on the Spielberg issue. NLRB vy. United Parcel Service, Inc., 677 F.2d 421, 422 (6th Cir. 1982). 22. Because the grievance panels did not consider or resolve the unfair labor practice issues, the ALJ and the Board did not have to consider the other Spielberg criteria when deciding whether to defer. General Warehouse, 643 F.2d at 969; Professional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34, at 5 n.3 (1982). Accordingly we do not reach the Board’s other argument that the arbitrator's deci- sion as to Bowlds was “clearly repugnant” to the Act. 23. UPS argues that the arbitrator's decision to uphold Bowlds’ discharge implicitly decided that UPS did not discriminate in viola- tion of the Act. The collective bargaining agreement explicitly prohibits “any discrimination against any employee because of union member- ship or activities.” App. at 29a. Thus UPS argues that the decision to uphold Bowlds’ discharge “necessarily” was a decision holding that the Company had not discriminated against Bowlds because of his protected activity. While an arbitrator’s award may “evince resolution of unfair labor practice issues,” Hammermill. 658 F.2d at 160, a finding favor- able to the employer does not automatically dispose of a claim of Court of Appeals Opinion A23 2. The General Counsel's Prima Facie Case. 29. UPS contends that even if the Board properly refused to defer to the grievance panel’s decision, we should not enforce the Board’s order. It asserts that the General Counsel, when presenting his case to the ALJ, failed to meet his threshoid burden of making a prima facie show- ing of unlawful discrimination. 30. To establish a prima facie case, the General Counsel must present sufficient evidence to support the inference that protected conduct was a motivating factor in the employer's decision. Behring International, Inc. v. NLRB, 675 F.2d 88, 90 (3d Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82- 438). As the Supreme Court explained in Texas Depart- ment of Community Affairs v. Burdine, 450 U.S. 248 (1981): [T]he prima facie case “raises an inference of dis- crimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect cre- ates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the 23. (Cont'd) discriminatory discharge in violation of the Act. Jd; General Ware- house, 643 F.2d at 969 & n.13. When no evidence or protected activity is presented to the arbitrator and the arbitrator's decision makes no mention of statutory protected rights, we find it difficult to conclude “that the arbitrator consider[ed] the statutory issue and rule[d] on it or all the facts required to decide it.” General Warehouse, 643 F.2d at 969 & n.17. But cf. Motor Convoy, 673 F.2d at 736 (based on the evidence presented to the arbitration panel, inherent in its decision was a resolution of the question of whether employee was fired for protected union activities). A24 Court of Appeals Opinion court must enter judgement for the plaintiff because no issue of fact remains in the case. Id. at 254 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)) (footnote omitted). The bur- den of establishing a prima facie case is not onerous. Burdine, 450 U.S. at 253. 31. We do not think that the ALJ erred in holding that the General Counsel established a prima facie case of unlawful discrimination. The General Counsel pro- duced evidence that UPS knew that Bowlds and Perkins were involved in widespread protected activity, including organizing efforts for UPSurge. The General Counsel also presented evidence that Bowlds and Perkins, at the time of their discharges, were involved in another unfair labor practice proceeding concerning alleged discrimina- tion for union activity. Bowlds and Perkins both testified that, contrary to reports by UPS’s supervisors, they did not overextend their breaks on the night of August 27- 28. Evidence corroborating their testimony was intro- duced by the General Counsel.** Those facts are sufficient to support an inference that UPS discharged Bowlds and Perkins for their protected activities. Accordingly, we hold that the General Counsel met his threshold burden of establishing a prima facie case of discriminatory dis- charge. 3. The Burden of Proof Issue 32. UPS's final contention is that, assuming estab- lishment of a prima facie case, the ALJ improperly shifted to UPS the burden of proving that Bowlds and Perkins would have been discharged regardless of their protected activity. In Behring International, Inc. v. NLRB, we out- lined the appropriate burdens of going forward and of proof to be applied in a discriminatory discharge case. 24. App. at 247a-49a, 275a, 278a, 472a-76a, 529a-31a, 631a. Court of Appeals Opinion A25 Under our formula, once the General Counsel has established a prima facie case of discriminatory dis- charge, the employer should rebut this with evidence of a legitimate business reason for its action. The ultimate burden of proof does not shift from the General Counsel and does not devolve upon the employer at any stage. Therefore, no violation may be found unless the Board determines that the Gen- eral Counsel has proved by a preponderance of the evidence that the employer’s anti-union animus was the real cause of the discharge. 675 F.2d 83, 90 (3d Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-438); see NLRB v. Blackstone, 685 F.2d 102, 105 (3d Cir.), cert. denied, 103 S. Ct. (1982). UPS argues that the Board failed to apply that test when it determined that UPS had violated the Act by discharging Bowlds and Perkins. UPS contends that the Board instead applied its Wright Line test, which shifts the burden of persuasion on the issue of motive to the employer once the General Counsel estab- lishes a prima facie case of discriminatory discharge. See Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (Ist Cir. 1981), cert. denied, 455 U.S. 989 (1982)” Accordingly, UPS argues to deny enforcement. 25. Note that in Behring we approved that part of the Board’s Wright Line opinion which placed the initial burden on the General Counsel to establish a prima facie case of unlawful discrimination. We disagreed with the Board, however, that once a prima facie case is shown the burden of persuasion shifts to the employer. Behring, 675 F.2d at 90; see Blackstone, 685 F.2d at 105. We emphasized the importance of the procedural aspects of a discriminatory discharge case. We stated: From a practical standpoint, it is unlikely that the decision in many cases will turn on whether the employer’s burden is characterized as being one of persuasion or production. Never- theless, as the Board recognized in Wright Line, 251 N.L.R.B. A26 Court of Appeals Opinion 33. We agree that the ALJ and the Board misallo- cated the burden of persuasion in the instant case. In his decision the ALJ clearly shifted to UPS the burden of \ providing that the discharges would have taken place in the absence of any protected conduct. App. at 163a. The Board specifically affirmed the ALJ’s rulings, findings, and conclusions. Because the ALJ’s and the Board’s deci- sions are in contravention of our holding in Behring, we cannot enforce the Board’s order and must remand to the Board for reconsideration. Blackstone, 685 F.2d at 106; Behring, 675 F.2d at 91. IV 34. We will vacate the Board’s order reinstating Bowlds and Perkins and awarding them backpay and other benefits, and we will remand the case for further proceed- ings. In all other respects we will enforce the Board’s order. ROSENN, Circuit Judge, Concurring and Dissenting. I agree with the majority that because the Board improperly allocated the burden of proof in determining that the discharges of Bowlds and Perkins were discrimi- natory, the case must be remanded for further 25. (Cont'd) at 1087, “[t]"his distinction is a crucial one since the decision as to who bears this burden can be determinative.” We think that fewer errors will result if the distinction is properly observed. Behring, 675 F.2d at 90 (footnote omitted). The Supreme Court has recently granted certiorari in NLRB v. Transp. Management Corp., 674 F.2d 130 (1st Cir.) (per curiam), cert. granted, 103 §. Ct. 372 (1982), to resolve the conflict between the Board and various courts of appeals on the burden of proof issue. EL Court of Appeals Opinion A27 consideration of this charge. But I believe that the majority has erred in its separate holding that United Parcel Serv- ice (UPS) violated section 8(a)(1) of the Act by its overly broad rule against the distribution of union literature. The Company has raised an important statute of limita- tions challenge to the Board’s finding of this unfair labor practice, and I think this challenge also warrants further consideration on remand. The Board determined that UPS violated section 8(a)(1) of the Act entirely on the basis of the incident in which Supervisor Mouser told employee Perkins that “Id rather you didn’t” distribute literature on company prop- erty. The testimony indicated that this statement was made sometime in February or March 1979. Since the Admin- istrative Law Judge had found a violation of section 8(a)(1) under a different theory, he made no finding as to pre- cisely when Mouser’s statement was made. Yet the date of the statement became a crucial item of information under the Board’s theory of the case. Section 10(b) of the Act precludes the Board from issuing a complaint unless formal charges were filed with the Board within six months of the alleged unfair labor practice. 29 U.S.C. § 160(b). Because Perkins filed his charge on September 12, 1979, the General_Counsel could only issue a com- plaint concerning events taking place after March 12, 1979. Thus, section 10(b) would require the Board to ascertain precisely when the Mouser-Perkins conversation occurred before the conversation could serve as the basis of an unfair labor practice finding. The Board did not consider this problem in making its decision. The majority disposes of this statute of limitations defense on the ground that it was not adequately raised before the Board, and that therefore this court may not consider it now. Under section i0(e) of the Act, 29 U.S.C. § 160(e), the court of appeals may not consider any argu- ment that an employer failed to raise before the Board unless “extraordinary circumstances” exist. See Woelke & A28 Court of Appeals Opinion Romero Framing, Inc. v. NLRB, 50 U.S.L.W. 4538, 4543 (U.S. 1982). The Company argues that it adequately raised the issue before the Board because in its brief to the Board filed in support of its exceptions to the Regional Director’s report, it clearly stated that “the section 10(b) limitations preclude any. . . finding” that Mouser’s state- ment violated the Act. The majority does not consider this adequate to raise the defense because the argument was not made in the Company’s formal exceptions but only in its supporting brief. See typescript op. at 18 n. 16. To my mind, this is an unduly technical and unrea- sonable disposition of this issue. The majority refers to regulations of the Board requiring parties to include in their exceptions all matters that are to be argued before the Board, and limiting the brief to matters within the scope of the exceptions. See 29 C.F.R. § 102.46. It is undeniable, however, that the Board was informed of the statute of limitations issue. We have previously held that a technical failure to comply with the Board’s procedural rules governing objections will not bar an employer from making his argu- ment to the court of appeals so long as the Board was “adequately appraised” of the employer’s position. NLRB v. Capital Bakers, Inc., 135 F.2d 45, 48 (3d Cir. 1965). See also NLRB v. Blake Construction Co., 663 F.2d 272, 283-84 (D.C. Cir. 1981) (“We do not think section 10(e) requires such a triumph of technical pleading over fun- damental fairness.”). Especially in the instant case, where the Board itself saw fit to reformulate the section 8(a)(1) issue at the last minute,’ I am very reluctant to adopt the 1. The Administrative Law Judge found a continuing violation of section 8(a)(1) arising out of a posted work rule pertaining to distribution of literature in the plant, and apparently viewed Mous- er’s statement as simply one instance of the implementation of this work rule. The Board, however, relied solely on Mouser’s statement to Perkins as the basis of the unfair labor practice finding. aor ern aeiinste Court of Appeals Opinion A29 excessively technical approach to section 10(e) that the majority does. As we recently have observed, “The pur- pose of § 10(e) is to ensure against piecemeal appeals to the courts by requiring that the parties first give the Board an opportunity to rule upon all material issues in a case.” NLRB v. Cardox Division of Chemetron Corp., 699 F.2d 148, 153 n.10 (3d Cir. 1983). In the instant case, the Board had such an opportunity. I cannot conceive of any purpose that would be served by foreclosing the Com- pany from arguing its statute of limitations defense on the ground that, though it made the argument to the Board in very explicit terms, it did so on the wrong page. I therefore think that the statute of limitations issue was adequately raised below and may be considered by the court on appeal.” The record suggests that this defense quite possibly has merit, since Mouser’s statement may have been made in February or the first few days of March. Accordingly, upon remand of the case, the Board should also be directed to ascertain whether Mouser’s statement took place within the statutory six-month period of sec- 2. The Company maintains that, assuming it did not adequately meet the requirement of section 10(e) that the statute of limitations issue be specifically raised before the Board, it should be excused for not having done so, because it was only when the Board reformu- lated the position of the ALJ that the statute of limitations issue became crucial. This argument might have had some merit, were it not for the Supreme Court’s recent decision in Woelke & Romero Framing, Inc. v. NLRB, 50 U.S.L.W. 4538, 4543 (1982), where the Court suggested that the section 10(e) bar applies even where an issue is injected into the proceedings by the Board’s decision, since the opposing party still has the option of filing a motion for re- consideration with the Board. But, as noted above, I believe that the Company adequately urged its statute of limitations objection before the Board. A30 Court of Appeals Opinion tion 10(b).° I therefore dissent on this statute of limitations issue. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 3. Since the case is being remanded to the Board on the discrim- inatory discharge issue, no further delay or inconvenience to the parties would be caused by remanding on the 8(a)(1) issue as well. Court of Appeals Judgment A31 JUDGMENT Before: GIBBONS, HUNTER and ROSENN, Circuit Judges THIS CAUSE came to be heard upon a petition filed by United Parcel Service, Inc., Owensboro, Ken- tucky, to review an order of the National Labor Relations Board issued against said Petitioner, its officers, agents, successors, and assigns on May 12, 1982, and upon a cross-application filed by the National Labor Relations Board to enforce said Order. The Court heard argument of respective counsel on February 15, 1983, and has con- sidered the briefs and transcript of record filed in this cause. On April 18, 1983, the Court being fully advised in the premises handed down its decision in which it granted enforcement of the Board’s order in part, vacated in part and remanded the case to the Board for further proceed- ings. In conformity therewith, it is hereby ORDER AND ADJUDGED by the Court that Petitioner, United Parcel Service, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Promulgating, maintaining, and enforc- ing a no-distribution rule prohibiting distribution of union materials on Company property at any time. (b) In any other manner interfering with, restraining, or coercing employees in the exer- cise of the rights guaranteed them in Section 7 of the National Labor Relations Act (herein- after called the Act). 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Post at its facility in Owensboro and Dated: Court of Appeals Judgment Campbellsville, Kentucky copies of the attached notice marked “Appendix.” Copies of said notices, on forms to be provided by the Regional Director for Region 25, of the National Labor Relations Board (Indianapolis, Indiana) after being duly signed by Petitioner’s representative, shall be posted by Petitioner immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Petitioner to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the aforesaid Regional Director in writing, within 20 days from the receipt of this judgment. while steps have been taken to comply herewith. By THE Court JAMES Hunter III Circuit Judge May 17, 1983 Court of Appeals Judgment A33 APPENDIX NOTICE TO EMPLOYEES POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORC- ING IN PART AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT promulgate, maintain, or enforce a no-distribution rule prohibiting distribution of union literature or materials on company property at any time. A34 Court of Appeals Judgment WE WILL NOT in any other manner interfere with, restrain, Or coerce our employees in their exercise of the rights guaranteed them under the Act. UNITED PARCEL SERVICE, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board’s Office, Federal Office Building, room 232, 575 North Pennsylvania Street, Indi- anapolis, Indiana 46204, Telephone 317-269-7413. Decision and Order A35 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD UNITED PARCEL SERVICE, INC. and ROBERT W. BOWLDS, an Individual Case 25— CA — 11313 DAVID E. PERKINS, an Individual Case 25— CA —11313—2 DECISION AND ORDER On October 30, 1980, Administrative Law Judge Phil W. Saunders issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed a brief in support of the Administrative Law Judge’s Decision, and Respondent filed a supplemental brief.’ Pursuant to the provisions of Section 3(b) of the Nationa! Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,” and conclusions” 1. Respondent's unopposed motion to file a supplemental brief is granted. 2. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board’s established policy not to overrule an administrative law judge’s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefuliy examined the record and find no basis for reversing his findings. 3. In affirming the Administrative Law Judge’s conclusion that Respondent violated Sec. 8(a)(1) of the Act by promulgating, main- A36 Decision and Order of the Administrative Law Judge and to adopt his rec- ommended Order, as modified herein.” ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, United Parcel Serv- ice, Inc. Owensboro, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph I(c): “(c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.” 2. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: “(b) Expunge from its files any references to the disciplinary suspension of Bowlds and Perkins issued 3. (Cont'd) taining, and enforcing an unlawfully broad no-distribution rule, we refer solely to the implied restrictions against distribution on non- working tirne which Supervisor Mouser communicated to employee Perkins in a February or March 1979 conversation. We find no need to decide whether Respondent’s written no-solicitation, no-distribu- tion rules also violated Sec. 8(a)(1). See 7:R.W. Bearings Division, a Division of T.R.W., Inc., 257 NLRB No. 47 (1981). 4. The Administrative Law Judge recommended that Respond- ent cease and desist from “in any like or related manner” interfering with the employees’ Sec. 7 rights. We find that the issuance of a broad order is warranted inasmuch as Respondent has previously been found to have violated the Act in certain respects similar to the violations found herein. See United Parcel Service, Inc., 252 NLRB 1015 (1980). Thus, Respondent has shown a proclivity to violate the Act and has engaged in such egregious and widespread misconduct a re —e Decision and Order A37 on August 28, 1979, and to their subsequent dis- charges, and notify them in writing that this has been done, and that evidence of these unlawful actions will not be used as a basis for future discipline against them.” 3. Substitute the attached notice for that of the Administrative Law Judge. Dated, Washington, D.C. May 21, 1982 John H.Fanning, Member Howard Jenkins, Jr., _ Member Don A. Zimmerman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4. (Cont'd) as to demonstrate a general disregard for the employees’ fundamen- tal Sec. 7 rights. We note that during this proceeding, and during the grievance and arbitration proceedings involving employee Bowlds’ suspension on August 28, 1979, and his subsequent discharge, Respondent defended its conduct by relying in part on a final warning letter it issued to Bowlds on October 3, 1978. In United Parcel Service, Inc., 252 NLRB 1015 (1980), the Board found that the disclipine which resulted in this final warning letter was unlawful. It follows that this letter was nullified by the Board’s decision. Respondent's use of the letter, in the instant case, as evidence that its discipline of Bowlds was legitimate is, to the contrary, further proof of Respondent's unlawful discriminatory motivation. Apparently through inadvertence the Administrative Law Judge failed to require Respondent to expunge from its records any refer- ence to the August 28, 1979, suspensions and subsequent discharges of Bowlds and Perkins. We shall modify the recommended Order accordingly. A38 Decision and Order APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or pro- tection To refrain from the exercise of any or all such activities. WE WILL NOT promulgate, maintain, or enforce a no-distribution rule prohibiting distribution of union lit- erature or materials on company property at any time. WE WILL NOT discriminate against our employees because they gave testimony in a Board proceeding. WE WILL NOT suspend, discharge, or otherwise discriminate against employees in violation of the rights guaranteed them under the Act. WE WILL NOT discourage membership in Team- sters Local 710 or Teamster Local 89, or any other labor organization, by discriminating against our employees in regard to their hire and tenure of employment or any terms or conditions of employment. — Decision and Order A39 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their exercise of the rights guaranteed them under the Act. WE WILL offer to Robert Bowlds and David Per- kins reinstatement to their former jobs or, if such jobs no longer exist, to subsiantially equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings or benefits, plus interest. WE WILL expunge from our files any references to the disciplinary suspensions of Bowlds and Perkins issued on August 28, 1979, and to their subsequent discharges, and notify them in writing that this has been done, and that evidence of these unlawful actions will not be used as a basis for future discipline against them. UNITED PARCEL SERVICE, INC. (Employer) Dated ______ By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board’s Office, Federal Office Building, Room 232, 575 North Pennsylvania Street, Indianapolis, Indiana 46204, Telephone 317-269-7413. A40 Decision and Order UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES UNITED PARCEL SERVICE, INC. and Case 25-CA-11,313 ROBERT W. BOWLDS, An Individual and Case 25-CA-11,313-2 DAVID E. PERKINS, An Individual Albert G. Fisher, Esq., for the General Counsel W. Bruce Baird, Esq., and Matthew R. Westfall, Esq., for the Respondent. DECISION Statement of the Case PHIL W. SAUNDERS, Administrative Judge: Based on charges and amended charges filed on certain dates in September and October, 1979, by Robert Bowlds and David Perkins, a consolidated complaint was issued on October 24, 1979, against United Parcel Service, Inc., herein the Respondent or the Company, alleging viola- tions of Section 8(a)(1), (3) and (4) of the Act. Resp. »ndent filed an answer to the complaint denying it had ensaged in the alleged matter. Both the General Counsel and the Respondent filed briefs in this matter. Upon the entire record in the case, and from nmiy observation of the witnesses and their demeanor, I make the following: Findings of Fact I. The Business of Respondent The Respondent is an Ohio corporation with an office and place of business located at Owensboro, Kentucky, a Decision and Order A4l and where it is engaged in the interstate transportation and distribution of parcels and a parcel delivery service. During the year preceding the hearing herein, Respond- ent performed services valued in excess of $50,000 in States other than the State of Kentucky. During the same period it received gross revenues in excess of $500,000, as a link in the interstate transportation of goods. It is conceded, and I find, that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Il. The Labor Organizations Involved Teamster Local 710, a/w International Brotherhood of Teamster, Chauffeurs, Warehousemen and Helpers of America, and Teamster Local 89, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. Ill. The Unfair Labor Practices It is alleged that in March 1979 the Respondent pro- mulgated and since said date has maintained the following rule: No distribution of UPSurge written material on the Respondent's property at any time. That the Respondent promulgated the rule described above in order to discourage its employees from joining, supporting or assisting UPSurge, and that in March 1979 the Respondent, by its officer and agent Tom Mouser, maintained and enforced the rule by prohibiting its employees from passing out UPSurge materials at any time while they were on Company property. It is further alleged that on August 31, 1979, the Respondent discharged Robert Bowlds and David Per- kins, and that the Respondent did so because: A42 Decision and Order (i) said employees filed charges with the Board and gave testimony under the Act; (ii) said employees joined and assisted Teamsters Local 710 and Teamsters Local 89; (iii) said employees joined and assisted UPSurge; (iv) said employees joined and assisted PROD; (v) said employees engaged in other union activity and concerted activities for the purpose of col- lective bargaining and mutual aid and protection, including participation in filing a civil suit against Respondent, and because the Respondent believed they had engaged in such activities or would do so. Since 1965, Bob Bowlds has been employed by Respondent at its Owensboro, Kentucky, facility as a feeder driver. During 1979 his scheduled run was from Owensboro to Nashville and then a return trip. During the periods material hereto, David Perkins started his feeder run at Campbellsville, Kentucky, his home base, drove to Nashville, and on his way back made a stop at Bowling Green, Kentucky, and then returned to Camp- bellsville. Perkins had driven this run since 1977. The Company maintains that both drivers were terminated in late August 1979 for overextending their rest breaks and falsifying their timecards. It appears that feeder drivers, such as Bowlds and Perkins, report each day to their home location, drive a trailer load of packages to the same destination or termi- nal for dropoffs, and then return to their origin that same workday with a new load of packages. A feeder driver is assigned a specific start time each day to begin his sched- uled run. After punching the timeclock, a feeder driver must “pre-trip” his truck before departure from the ter- minal. This consists of checking oil and water and visually inspecting the safety equipment on the tractor and trailer. Decision and Order A43 After completion of the “pre-trip inspection” the feeder driver then updates his ICC logbook and timecard. Each driver is assigned a specific time when he is scheduled to physically depart his home facility and begin driving to his destination. When en route to his destination, the feeder driver is allowed one 15-minute break on the down leg, provided the distance to his destination is 100 miles or greater. In addition to the 15-minute break, the driver is also allowed up to 5 minutes additional time contiguous with the rest break for visual safety inspection of his rig and to update his timecard and logbook, but the time and place of the 15-minute rest break is left to the discretion of the driver. However, each feeder driver is scheduled to arrive at his destination at a precise time. The Company maintains that punctuality is paramount due to the fact that each package load is destined for different States, and the packages must be re-sorted at the destination and then reloaded on to other feeders or trucks which are sched- uled to leave at precise times in order to make connections at their destinations. It also appears that once at his destination (Nash- ville) the feeder driver then takes his 30-minute lunch break. Other duties of the feeder driver at his destination terminal include fueling of tractors, washing trailers, spotting trailers in the hub yard, and loading or unloading packages, and each driver, when his return trailer is hooked up, must complete another “pre-trip” inspection prior to departure and update his logbook. Departure for return to his home terminal is also scheduled on an assigned time, and on his return, if it exceeds 100 miles, the feeder driver is again allowed another 15-minute rest break. plus the 5-minute safety check including the update of his log- book and timecard. The driver is also assigned a specific time to return to his home terminal, and upon arrival makes a visual “post-trip” inspection of his equipment, A44 Decision and Order completes his logbook and timecard, and punches out. The timecard, which is filled out completely by the driver, must accurately reflect the amount of time the feeder driver spent on the road and on breaks, and in conformity with government regulations and Company policy, each feeder driver must also note any defects or problems with his equipment on a Car Condition Report. As to Bowlds For background purposes, it is noted that Bowlds was terminated twice in 1978. He was first discharged by Respondent on April 24, 1978. Thereafter, on May 24, 1978, Bowlds received a final warning. This warning, also pursuant to the grievance procedure, was rescinded on June 14, 1978. Bowlds was again terminated on August 4, 1978, but again pursuant to the proceedings and a deci- sion at the final arbitration step of the grievance procedure, Bowlds was reinstated on or about October 3, 1978. However, in the absence of an award for backpay by the arbitration panel, Bowlds was not reimbursed for the aforestated period that he was off work.' There was also an earlier case before the Board (United Parcel Service, Inc., 25-CA-10318), involving the August 4, 1978, termi- nation of Bowlds alleging that Respondent unlawfully discharged Bowlds for his union activities—for his efforts on behalf of PROD and UPSurge, and for his participa- tion in the filing of a lawsuit in the United States District Court for the Western District of Kentucky to improve working conditions at Respondent. This earlier Board case was tried on April 5, May 30, and September 12, 1979, and Administrative Judge John P. von Rohr issued 1. It appears that at all times material hereto Respondent's employees were represented by Local No. 89 of the Teamsters Union, and that all grievare: matters, meetings and awards, as detailed herein, were held under the grievance procedure of the collective- bargaining agreement between the parties. nd ata Dat ORE AH OM angel nhs Decision and Order A45 his Decision on January 10, 1980. In this earlier case the issue was similar to the instant one: did Respondent fire Bowlds for overstaying his 15-minute break? (Perkins was not involved in this case.) Judge von Rohr found and concluded that Bowlds was unlawfully issued a final warn- ing earlier and then later unlawfully discharged for his union and protected concerted activities. Judge von Rohr noted, among other circumstances, that Bowlds was dis- charged unlawfully for his activities on behalf of PROD and UPSurge, as well as Bowlds’ participation in the class action suit against Respondent in the U.S. District Court, and the Board recently affirmed this Decision. See United Parcel Service, Inc., 252 NLRB No. 145. It is noted that UPSurge is an organization of Respondent employees which is generally critical of the Teamsters Union, as well as the Respondent, in matters pertaining to labor relations and in matters pertaining to the employees’ wages, hours and working conditions. This organization periodically publishes a newspaper and other pamphlets to express its views. “PROD” is a related orga- nization of Respondent employees, similarly involved. I need not dwell further on the subject, since the Board has held, and I find, that employee activities on behalf of these organizations constitute concerted protected activ- ity.” As relevant background to the instant case, I further take official notice that the Board, in the aforecited cases, has found that Respondent has engaged in various unfair labor practices in connection with its opposition to employee activities on behalf of the organizations in question. UPSurge activities among Respondent's employees began in 1975. From then on, and at all times material 2. United Parcel Service, Inc., 230 NLRB 1147; United Parcel Service, Inc., 234 NLRB 223 (1978); United Parcel Service, Inc., 234 NLRB 48s (1°78); enforcement denied, No. 78-1258. (C.A. 6) Octo- ber 12, 1979 (citation n/a). | A46 Decision and Order hereto, Bowlds was responsible for distributing UPSurge’s newsletter and literature among the 45-50 employees at the Owensboro Terminal in late 1976 or early 1977. Bowlds engaged in similar activities on behalf of PROD at that facility and distributed the bi-monthly PROD newsletter to the Owensboro employees. Bowlds specifically testi- fied that when he openly distributed UPSurge at the Owensboro Terminal — Supervisor Tom Campbell was present on several occasions while he did so — in 1977, 1978 and 1979. Bowlds further testified that when he openly distributed PROD at the Owensboro Terminal, he did so in front of Supervisors Tom Campbell, Herschel Cash, and Mike Worth. As to the 1977 class action suit against Respondent in the U.S. District Court— Bowlds stated that he assisted in bringing this suit on behalf of drivers in Kentucky relative to a Svate statute prescribing or pertaining to certain breaktimes, and that he also solicited money for this suit and later hand-passed and mailed out petitions in conjunction therewith. He stated that the case is now (April 1980) being reviewed by the Sixth Circuit Court of Appeals. The Respondent produced testimony through their Division Manager Bob Jones, who has overall responsi- bility for all feeder operations in Kentucky, to the effect that from the time Bowlds was reinstated on October 3, 1978, as aforestated, until August 27, 1979, he had received occasional complaints about Bowlds returning late to the Owensboro Center—that both Owensboro Center Man- ager Tom Campbell and Western Division Manager Ben Cissell had reported that Bowlds was still returning behind schedule. Jones then relayed these complaints to Darwin Turpin, the feeder manager, and later on to Turpin’s suc- cessor, George Knoblock. The Respondent also has a policy of running “serv- ice checks” on its drivers from time to time, and on March i : : : Decision and Order A47 14, 1979, Feeder Supervisor Herschel Cash went with Bowlds and performed a service check of Bowlds from the Owensboro Center to his destination at Nashville and back. It appears that the general purpose of the service check is for a supervisory inspection and evaluation of driver peformance, and which is undertaken every few months for all feeder drivers. On this occasion Bowlds arrived at Nashville about 4 minutes late. He then departed Nashville on time and arrived at the Owensboro Center about 8 minutes late. At the conclusion of the run Super- visor Cash told Bowlds how he could correct this delay. Bowlds had taken the proper rest breaks on this run. On May 9, 1979, Supervisor Cash again made a service check on Bowlds, and again Bowlds complied with the rest break periods, but was 6 or 7 minutes late in arriving in both directions.” Supervisor Cash receives weekly operation reports which reflect the actual driving time, turn-around time, and finish time of all feeder drivers under his supervision, and Cash testified that between August 1 and August 27, 1979, Bowlds was consistently returning to the Owens- boro Center 15 minutes or more late. He stated that Bowlds was scheduled to arrive at Owensboro from Nashville at 6 a.m., yet he was returning at 6:15 a.m. or later. Moreover, that on August 22, 1979, he talked to Bowlds in Nashville, and again instructed him to have his trailer coupled, complete his pre-trip inspection, and be ready to leave the Nashville hub at 2:40 a.m., and to be “out the gate at 2:45 a.m.” Bowlds replied, “Okay.” Cash 3. It appears that the Respondent also has a policy wherein feeder drivers are followed and monitored by supervisors from time to time in order to ascertain whether excessive breaks are taken, and that there have been instances in the past where such violations have been detected and the driver involved was then terminated or sus- pended where such a violation was proven, but it appears that in most instances in the past, the alleged offense was not proven. A48 Decision and Order testified that a feeder driver does have control over the time he leaves the Nashville terminal, but Bowlds (and Perkins) testified that there can be several factors which can and do cause considerable delays from time to time. Turning now to the specific events and circumstances involved in the instant case pertaining to Bowlds. On the night of August 27-28, 1979, Bowlds came to work early, at about 8:10 p.m. a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3033%3A1. Public record. Not legal advice.